Evans v. State

OPINION ON REMAND

LATTIMORE, Justice.

William Evans, appellant, was found guilty by a jury of aggravated robbery with a deadly weapon. TEX. PENAL CODE ANN. § 29.03 (Vernon 1989). The jury sentenced Evans as a prior offender to life imprisonment in the Texas Department of Corrections. Id. at § 12.42(c) (Vernon Supp.1989). On direct appeal, this court overruled Evans’ contention that TEX. CODE CRIM.PROC.ANN. art. 37.07, § 4 (Vernon Supp.1989), is unconstitutional, but reversed Evans’ conviction after sustaining a point of error in which he complained of a “have you heard” question asked by the State during the punishment phase of the trial. Evans v. State, 732 S.W.2d 703 (Tex.App.—Fort Worth 1986). On petition for discretionary review, the Court of Criminal Appeals disapproved the rationale by which we sustained the “have you heard” point of error and vacated the judgment of this court. Evans v. State, 767 S.W.2d 759, 760 (Tex.Crim.App.1988). The court remanded the case for consideration whether error contributed to punishment under Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1987) (opinion on reh’g).

We reverse and remand.

In Rose, the Court of Criminal Appeals reaffirmed its earlier opinion that TEX. CODE CRIM.PROC.ANN. art. 37.07, § 4, is unconstitutional because it violates the separation of powers and due course of law provisions of the Texas Constitution. However, the court reassessed the harm analysis to be used by an appellate court when a charge pursuant to article 37.07 is given. In the original Rose opinion, the concurring judges applied the two-tiered test of Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) (opinion on reh’g), in determining whether the error was harmful. On rehearing, a majority of the court held the proper standard of review is contained in TEX.R.APP.P. 81(b)(2), which requires us to reverse the judgment unless we determine beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. See Rose, 752 S.W.2d at 553. In Rose, the court considered three factors relevant to its harmless error analysis: (1) the presumption that the jury followed the trial judge’s instruction to disregard parole; (2) the heinous nature of the crime; and (3) the defendant’s prior criminal record. Id. at 554.

In Rose, the trial court read the statutory parole instruction of TEX.CODE CRIM.PROC.ANN. art. 37.07, § 4(a), but also read an additional instruction directing the jury not to discuss parole among themselves. Rose, 752 S.W.2d at 554. In the instant case, the trial court gave the statutory parole instruction, but did not give the jury any additional instruction not to discuss parole. Evans robbed a convenience store. He pointed a gun at a clerk’s head, but he did not shoot the clerk when she pushed the alarm button to call the police. Evans had one prior offense; he was convicted of murder in 1973.

The range of punishment for Evans was fifteen years to life. TEX. PENAL CODE ANN. § 12.42(c). The jury selected life. Under the evidence before us we cannot say beyond a reasonable doubt the erroneous instruction on parole did not contribute to the jury’s decision to impose the maximum sentence.

Evans’ remaining points of error concerning the “have you heard” question by the State are not necessary to our disposition of this appeal. TEX.R.APP.P. 90(a).

The judgment of the trial court is reversed and remanded for disposition consistent with this opinion. TEX.CODE CRIM.PROC.ANN. art. 44.29(b) (Vernon Supp.1989); Ex parte Klasing, 738 S.W.2d 648, 651 (Tex.Crim.App.1987).

KELTNER, J., dissents.